Persuading quickly: tips for writing an effective appellate brief.

AuthorRoth, Jane R.

We write this article to guide the brief-writing advocate on how to make her brief more effective. Because we are a judge and her former law clerk, we think that we know what we're talking about.

The main goal when writing a brief is to persuade the judge that the advocate's argument is the correct one to resolve the parties' dispute. This persuasion must be done quickly because judges read mountains of briefs every year. For instance, each year an appellate judge on the Third Circuit will participate in six court sittings. For each sitting, the Third Circuit judge will have, at most, two months to study all the briefs. (1) For the twelve-month period ending on September 30, 2009, almost 58,000 appeals were filed in the thirteen federal courts of appeals. (2) In the Third Circuit alone, 3750 appeals were filed, (3) adding up to about 300,000 pages of briefs. (4) Indeed, Chief Judge Alex Kozinski of the Ninth Circuit estimates that he reads 3,500 pages of briefs per month. (5) Simply put, the appellate judge reads, writes, reads--and then repeats the cycle.

The furious pace of absorbing law in distinct areas for each sitting makes the life of an appellate judge similar to that of a law student, but with final exams six times a year. Advocates must therefore provide a concise, coherent brief that respects the judge's time constraints. They must appreciate the difference between their perspective and the judge's perspective: Advocates spend months researching and writing a brief, reading it multiple times during the editing process; the judge, by contrast, may read the brief only once. Because advocates usually view the process from their perspective, their briefs tend to be much longer than necessary. The Chief Justice himself has commented that almost every brief that he has encountered could have been shorter. (6) Chief Judge Kozinski made the point with asperity: "[W]hen judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief." (7) If advocates understand that the brief will persuade quickly only if it is written for the judge's perspective, they will more easily absorb our suggestions.

This article will, we hope, demonstrate how to write a brief that persuades quickly--and we hope that we can quickly persuade the reader of the merits of our point of view. In its first two sections, our article offers suggestions for achieving the goal. Section one gives tips on improving five parts of a brief: facts, standard of review, argument, summary of argument, and issues presented. Section two provides important brief-writing tips. Finally, section three presents legal principles that advocates should consider while preparing every brief. These principles do not relate to brief-writing, but they are, we submit, principles that may enhance a brief.

  1. IMPROVING SPECIFIC SECTIONS

    1. Facts

      Many advocates dump facts haphazardly into the facts section, without a strategy. Those briefs are thus impotent from the start; they cannot persuade quickly because they have failed to even capture the judge's attention.

      You, as an advocate, must provide only legally relevant facts and a strategic number of additional facts that add to the human interest of the story you tell in this section. (8) The legally relevant facts are those that are necessary for application later, in the argument section, to the governing law. For example, in an appeal concerning whether a party complied with the statute of limitations, you should provide the date of injury and the date the action was filed. The facts that add to the human interest are those that forcefully capture the judge's attention and remind her of the real lives affected by the parties' legal controversy.

      You should provide those two types of facts while keeping in mind four specific goals: seize the story, summarize the story in the first paragraph, embrace the ugly, and be honest.

      1. Seize the Story.

        This is accomplished by skillfully presenting both types of facts so that your client is perceived in a positive light; the client is the protagonist in the parties' dispute. Being the protagonist alone, of course, will not win the case on appeal, but it is important. We suspect that many judges are more inclined to go the advocate's way in a close case if her client is viewed as the "good guy." You should persuade the judge that, if the court endorses your argument, the fight party wins and justice is achieved.

        One way to seize the story is to start the facts section with a crisp one-liner that frames the entire dispute from the advocate's perspective. The one-liner can easily begin with "This is a case about ..." or "This case involves ..." (9)

        Consider, for example, two hypothetical introductions from a case involving California's Sexually Violent Predator Act (SVPA), which allows the California State Department of Mental Health to take custody for an indeterminate term of an individual adjudicated as a sexually violent predator. (10) The confinement of a person detained under the SVPA must be reviewed at least once a year to determine whether further detention is warranted. (11) Under the SVPA, detainees awaiting adjudication are civil detainees who must be offered detention separate from inmates. (12) The case of John Doe arose after hospital officials transported him to the county jail to receive his bi-annual assessment. Doe contended that jail officials failed to offer separate housing and detained him with inmates. We suggest the following as examples of effective factual introductions for each side:

        For John Doe: This case involves a civil detainee, John Doe, who was confined at a county jail, like a criminal convict, while he was awaiting mental-health adjudication. For Pope, Head Jail Official: This appeal considers whether a convicted sexual predator, whose confinement was evaluated consonant with governing law, can make a claim of improper confinement based on unverified affidavits. These introductions would shape the way in which the judge views the rest of the facts section, with each party's opening funneling the facts and arguments to the legal issue that it found dispositive.

        Another way to seize the story is to tactfully include a vivid fact that will stick with the judge during the decisionmaking process. This tool works well in cases in which the advocate's opponent is the more sympathetic party and the advocate strives only to close the sympathy disparity between the parties. Take, for example, a medical-malpractice case in which the decedent's family claimed that the decedent's death resulted from improper monitoring by the physician after weight-reduction surgery. It is difficult to seize the story outright in such a case because the harm that befell the victim is tragic. The defense's theory was that the decedent willfully failed to follow medical advice--that he lacked will power and self-discipline--and so the tragic result flowed from the decedent's failures, not from the doctor's negligence.

        To draw attention to the decedent's obesity, the defendant's brief included this vivid fact: Because of his extreme obesity, the decedent was not physically capable of wiping himself after using the toilet. That description created a palpable image of the decedent as lacking in personal discipline, which worked to narrow the sympathy gap between the doctor and the decedent.

      2. Summarize the Story First.

        Always recap the entire story quickly in the first paragraph and then move into a chronological presentation beginning in the second paragraph. This roadmap will provide the judge with context, signaling which facts will be legally relevant. Think of it as providing the same function as scanning the inside flap of a book jacket before beginning to read the book.

        Returning to the sexual predator, John Doe, after the one-sentence opening, Doe's advocate should finish the paragraph with a summary, so that the first part of the presentation reads something like this:

        This case involves a civil detainee, John Doe, who was confined at a county jail, like a criminal convict, while he was awaiting mental-health adjudication. In January 2002, Doe was transferred from a hospital to the county jail for a determination of his mental health under the SVPA. Both the hospital and jail officials acted properly during the transfer. But from February 2002 until December...

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